The soldiers at the bottom of the chain are taking the heat for Abu Ghraib and torture around the world, while the guys at the top who made the policies are going scot free. That’s simply not right.

Reed Brody, special counsel

The United States should name a special prosecutor to investigate the culpability of Secretary of Defense Donald Rumsfeld and ex-CIA Director George Tenet in cases of detainee torture and abuse, Human Rights Watch said in releasing a new report today.

The report, Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees, is issued on the eve of the first anniversary of the publication of the Abu Ghraib photos (April 28). It presents substantial evidence warranting criminal investigations of Rumsfeld and Tenet, as well as Lt. Gen. Ricardo Sanchez, formerly the top U.S. commander in Iraq, and Gen. Geoffrey Miller the former commander of the prison camp at Guantánamo Bay, Cuba.

“The soldiers at the bottom of the chain are taking the heat for Abu Ghraib and torture around the world, while the guys at the top who made the policies are going scot free,” said Reed Brody, special counsel for Human Rights Watch. “That’s simply not right.”

Human Rights Watch said that there was now overwhelming evidence that U.S. mistreatment and torture of Muslim prisoners took place not merely at Abu Ghraib but at facilities throughout Afghanistan and Iraq as well as at Guantánamo and at “secret locations” around the world, in violation of the Geneva Conventions and the laws against torture.

“This pattern of abuse across several countries did not result from the acts of individual soldiers who broke the rules,” said Brody. “It resulted from decisions made by senior U.S. officials to bend, ignore, or cast rules aside.”

Among Human Rights Watch’s findings:

Secretary Rumsfeld should be investigated for potential liability in war crimes and torture by US troops in Afghanistan, Iraq and Guantánamo under the doctrine of “command responsibility”—the legal principle that holds a superior responsible for crimes committed by his subordinates when he knew or should have known that they were being committed but fails to take reasonable measures to stop them. Secretary Rumsfeld approved interrogation techniques which violated the Geneva Conventions and the Convention against Torture, such as the use of guard dogs to frighten prisoners and painful “stress” positions. There is no evidence that, over a three-year period of mounting reports of abuse, Rumsfeld exerted his authority and warned those under his command that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces certainly could have been avoided.

Under George Tenet’s direction, and reportedly with his specific authorization, the CIA has “rendered” detainees to countries where they were tortured, making Tenet potentially liable as an accomplice to torture. The CIA has also “disappeared” detainees in secret locations and it is said to have used “waterboarding,” in which the detainee’s head is pushed under water until he believes he will drown, also reportedly with Tenet’s authorization.

Gen. Sanchez approved illegal interrogation methods—again, including the use of guard dogs to frighten prisoners—which were then applied by soldiers at Abu Ghraib. Gen. Sanchez does not appear to have intervened to stop the commission of war crimes and torture by soldiers under his direct command.

Gen. Miller, as commander at the tightly-controlled prison camp at Guantánamo Bay, Cuba, may bear responsibility for war crimes and acts of torture there. He may also bear responsibility for bringing illegal abusive interrogation tactics to Iraq.

Despite this evidence, Human Rights Watch said, the United States has deliberately shielded the architects of illegal detention policies through the refusal to allow an independent inquiry of prisoner abuse and the failure to undertake criminal investigations against those leaders who allowed the widespread criminal abuse of detainees to develop and persist. Rather, the Department of Defense has established a plethora of investigations, all but one in-house, looking down the chain of command. Prosecutions have commenced only against low-level soldiers and contractors.

“A year after Abu Ghraib, the United States continues to do what dictatorships and banana republics do the world over when their abuses are discovered—cover up the scandal and shift blame downwards,” said Brody. “A wall of immunity surrounds the architects of the policy that led to all these crimes.”

Human Rights Watch requested the appointment of a special prosecutor, saying that because Attorney General Alberto Gonzales was himself deeply involved in the policies leading to these alleged crimes, he had a conflict of interest preventing a proper investigation of detainee abuse. U.S. Department of Justice regulations call for the appointment of an outside counsel when such a conflict exists and the public interest warrants a prosecutor without links to the government.

Human Rights Watch also repeated its call to Congress and the president to establish a special commission, along the lines of the 9/11 Commission, to investigate the issue of prisoner abuse. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the attorney general had not yet named one. Although Human Rights Watch said that existing evidence already necessitated criminal investigations, it emphasized that an independent commission could compel evidence that the government has continued to conceal, including the directives reportedly signed by President Bush authorizing the CIA to establish secret detention facilities and facilitating the “rendition” of suspects to brutal regimes.